Two West Hawaii residents are suing the county’s planning director and Board of Appeals over a ruling that apparently declared the Kona Community Development Plan illegal.
Two West Hawaii residents are suing the county’s planning director and Board of Appeals over a ruling that apparently declared the Kona Community Development Plan illegal.
Richard and Patricia Missler began their fight against a proposed planned unit development called Waikakuu Ranch in South Kona at least two years ago. The project would subdivide a 70-acre lot into 14 lots, 13 of which would be about 2 acres each, with the last lot made up of the remainder of the property. Doing so, the application said, would cluster the homes together.
The Misslers’ attorney Thursday morning filed an opening brief for their civil lawsuit in Kealakekua’s 3rd Circuit Court, naming the Board of Appeals, Planning Director Bobby Jean Leithead Todd, Malama Investments LLC, Loren Saxton and Mary Saxton as defendants. The Misslers’ attorney, Michael Matsukawa, called the board’s decision to uphold Leithead Todd’s decision to grant the planned unit development request a “slap in the face” to people who worked on the CDP.
“The board’s decision reflects how public officials can disregard the public’s trust,” Matsukawa said in a written statement Thursday. “It’s wrong that citizens must spend their own time and money to get county officials to do their jobs (properly) and in accordance with the laws they are charged to administer.”
Matsukawa argued before the board that the proposed development plan threatened the South Kona watershed because the development would include cutting down several hundred year old ohia trees, which help recharge the watershed. The Misslers said they were shocked to discover the plan was approved and determined to be compliant with the CDP, despite no planning officials ever visiting the project site.
“The Board of Appeals next held that the Planning Director was right when she ‘refrained’ from applying the Kona CDP in this case because, in the Board’s view, the Kona CDP is actually illegal or is otherwise not enforceable,” the lawsuit said. “However, the Board of Appeals is wrong. … As a matter of law, however, the Board of Appeals had no authority to make such a determination in the first place because the Board of Appeals could not invalidate the law that it was charged to administer (the Kona CDP).”
Matsukawa said Board of Appeals members concluded the CDP’s bill title was illegal, which then rendered the entire CDP ordinance invalid and the CDP itself void “even though the deputy corporation council (Amy Self) had endorsed the Kona CDP bill as being approved as to its ‘legality.’”
Deputy Corporation Counsel Renee Schoen, who represents the board, said Thursday afternoon that board members didn’t say that, and the board’s decision and order didn’t call the Kona CDP illegal.
The board also ruled the CDP does not apply to planned unit developments, the court document said. That is untrue, Matsukawa argued.
“Further, in enacting the Kona CDP, the Hawaii County Council specifically stated that a planned unit development is to be treated as a special form of subdivision,” he wrote.
A message left for Leithead Todd was not returned Thursday evening.